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Guidelines for Implementing The Policy to Prevent Harassing Conduct in the Workplace

  1. Background

    The policy to prevent and eliminate harassing conduct in the Department of Labor (DOL) workplace (the Harassing Conduct Policy) was issued by the Secretary of Labor on April 10, 2003. The purpose of the policy is to prevent harassing conduct from occurring, and to correct such conduct when it occurs in the workplace. The Policy addresses unwelcome verbal or physical conduct based on an employee's race, color, religion, national origin, sex, age, disability, or sexual orientation. Agency EEO Managers are required to actively investigate all complaints relating to conduct occurring on or after the issuance date of the policy.

    The Secretary of Labor on January 20, 2004, delegated responsibility for implementing the Harassing Conduct Policy to the Office of the Assistant Secretary for Administration and Management (OASAM). Within OASAM the responsibility was assigned to the Civil Rights Center (CRC). This document is intended to provide guidelines for implementing the policy to prevent harassing conduct in the DOL workplace.

  2. Definition

    Conduct is regarded as harassment when an employee is subjected to unwelcome verbal or physical conduct based on the employee's race, color, religion, national origin, sex, age, disability, or sexual orientation that adversely affects the work environment of the employee; or when an employment decision is contingent on an employee accepting or rejecting the unwelcome conduct.

    An employee may file a complaint alleging harassment on the basis of reprisal or retaliation when the acts of reprisal are directly related to an employee's participation in the Harassing Conduct Policy process. When an employee experiences reprisal or retaliation as a result of participation in Federal Equal Employment Opportunity (EEO) or a union grievance process, s/he may pursue his or her reprisal complaint under the respective complaint process already initiated.

    The Harassing Conduct Policy is not intended to replace an employee's rights under Federal EEO laws and regulations. It is intended to address the conduct of the perpetrator of the harassing behavior. The DOL's EEO complaint process is intended to provide remedies to employees who experience discrimination (disparate treatment in the workplace, or when applying for work) because of their race, color, religion, national origin, sex, age, disability, reprisal, parental status, or sexual orientation. Employees who file a complaint under the Harassing Conduct Policy will not be precluded from pursuing their rights under the EEO process.

  3. Explanation of Key Terms Used in these Guidelines

    This section is intended to provide "plain English" explanations of certain terms used in this document. This section is not intended to change the meanings assigned to them in statutes. Persons seeking further explanation of these terms should consult with the Director, CRC.

    1. Complaint — a report communicated in person, by phone, email, or fax, alleging harassing conduct by a DOL employee, or contract employee.

    2. Complainant — a current or former DOL employee, or contract employee who brings notice of harassing conduct to the attention of the agency EEO Manager or other designated DOL staff.

    3. Alleged harasser — a DOL employee, or contract employee who is reported to have engaged in unwelcome verbal or physical conduct based on another employee's race, color, religion, national origin, sex, age, disability, sexual orientation, or in reprisal for having filed a prior harassing conduct complaint.

    4. Concluded case — a case in which an investigation is completed and a determination is made concerning whether an allegation regarding harassing conduct is substantiated.

    5. Closed case — a case where after an investigation is completed and a determination is made that the allegations are not substantiated and no further action is warranted; or where after the allegation is substantiated and disciplinary action is proposed by DOL, the perpetrator of harassing conduct has exhausted all administrative appeals to which he or she may be entitled.

    6. Workplace — wherever a DOL employee may be found to be engaging in the performance of his or her duties.


  4. Reporting of Harassing Conduct
    1. An employee or any person or entity authorized to act on behalf of employees, e.g., the union or an attorney, is required to report allegations of harassing conduct to: anyone in the employee's supervisory chain; an agency EEO Manager; or an OASAM Regional Administrator (RA).

    2. An employee may report in person, call, fax, or email his or her complaint of harassing conduct to the agency EEO Manager or management official.

    3. An employee shall report harassing conduct as soon as he or she becomes aware of its occurrence in the workplace.

    4. A management official who receives a complaint of harassing conduct must immediately inform the EEO Manager in the agency where the alleged harasser is employed about the complaint.

  5. Responsibilities of the Agency EEO Manager

    The agency EEO manager shall:

    1. Document the allegation received in an office log. The office log shall include the following information:

      The name of the alleged harasser;
      The date of initial contact with the EEO office;
      The geographical region of the alleged harasser's office and the office address;
      The alleged harasser's division;
      The complainant;
      The basis of the allegation;
      The harassing conduct alleged;
      Status of the complaint (notation after every 30 days);
      Outcome of the complaint; and
      Date case was concluded.

    2. Contact the complainant within three (3) days of receiving notice of the complaint or the intake form, to inform him/her about the procedural steps that will follow.

    3. Request that the complainant provide a written statement on a harassment complaint intake form. The form may be emailed or faxed to the complainant.

    4. Inform appropriate management officials about the complaint and the level of administrative and financial cooperation for the purpose of acquiring a contract investigator or other resources that will be required of them.

    5. Determine whether the complaint is within the purview of the policy.

    6. Consult with Employee Labor-Management Relations staff regarding notification of the union if a complaint concerns a general condition of employment where several employees within a work unit may be affected by the allegations raised by the harassing conduct complaint (see Social Security Administration and American Federation of Government Employees, Local 1164, 59 FLRA 875, April 30, 2004).

    7. If the complaint is not based on an employee's race, color, religion, national origin, sex, age, disability, or sexual orientation, promptly inform the complainant and advise him or her to contact his or her first or second-line supervisor, or union representative. Offer assistance when possible, to reach an expeditious resolution to the problem presented.

    8. Document all actions taken, even when it is not handled as a harassing conduct complaint.

    9. Advise the complainant of his or her rights to file a complaint under the EEO process; inform him or her of the related deadlines for the EEO complaint process; and explain his or her rights under the collective bargaining agreement.

    10. If an employee files a complaint under the EEO complaint process after initiating a harassing conduct complaint, the EEO manager should continue the agency initiated harassing conduct investigation to its conclusion.

  6. Timeframes for Completing Action on Complaint

    The Department aims to respond promptly, appropriately, and effectively to an employee's notice of harassing conduct in the workplace. To that end, the following timeframes are suggested:

    1. The EEO Manager will respond to the employee who reports an allegation of harassing conduct in the workplace, within three (3) working days of the date of receipt of the notice to inform the employee of the procedural steps that will be taken to address the complaint.

    2. An agency EEO Manager will employ all reasonable efforts to promptly investigate a harassing conduct complaint; to propose interim relief, if appropriate and to facilitate the issuance of a decision by the appropriate management official within 120 days from the date the employee first provided the agency EEO Manager with notice of the alleged harassing conduct.

  7. Interim Relief
    1. The EEO Manager shall consult with Employee Labor-Management Relations staff, and the Office of the Solicitor (SOL) or in the case of the Office of the Inspector General (OIG), OIG counsel for legal guidance when interim relief is necessary during the period in which an allegation is being investigated. Interim relief may be used to minimize contact between a complainant and the alleged harasser until the matter is concluded.
    2. Interim relief is recommended in situations where an employee reports fear of physical threat as a result of harassing conduct; or when there is a concern that based on the allegations presented, specific circumstances may present hardship to the complainant.

    3. Kinds of interim relief that may be employed include but are not limited to:
      1. Temporary reassignment or transfer;

      2. Placement in flexiplace status; and

      3. Administrative leave in those circumstances when reassignment of an employee would present a hardship. When using administrative leave, consider the amount of leave time that will be required to resolve the investigation and confer with SOL, or in the case of OIG, the OIG counsel for legal guidance before implementing it as a measure of interim relief.

    4. Interim relief should be applied in a manner so as not to unduly burden the complainant.

  8. Use of a Contract Investigator

    The agency EEO Manager should:

    1. Consider using a contract investigator for complex harassing conduct complaints; for example, cases where a complainant alleges harassing conduct by a high-ranking official, judicial staff, or another agency EEO Manager.

    2. Contact his or her procurement office for guidance on securing a contractor for investigative purposes, and confirm the agency's commitment to pay for the investigation.

    3. Control the contractor selection process and ensure the integrity of the selection and investigative process.

  9. Investigation of Harassment Cases
    1. Coworker Harassment
      1. An EEO Manager may invite a supervisor, other management official, or agency Regional Administrator (RA) to investigate a complaint and to follow-up on disciplinary action that may be required. If a person other than an agency EEO Manager coordinates or conducts an investigation into harassing conduct, the investigating party shall inform the EEO Manager about the findings at the conclusion of the case.

      2. The EEO Manager should evaluate the information gathered in each harassing conduct complaint to assess whether disciplinary action may be required to address the acts of the perpetrator. If disciplinary action will be required to address the harassing conduct reported, the EEO Manager should inform appropriate management officials including Employee Labor-Management Relations officials; and confer with SOL or OIG counsel for legal guidance. The EEO Manager may get witnesses to provide signed or sworn statements concerning the harassing conduct reported.

        Signed or sworn statements received by the EEO Manager or person conducting the investigation of the harassing conduct allegation will be kept in confidence unless the statements are to constitute evidence in litigation.

      3. The EEO Manager shall consult with his or her respective agency supervisor and other management official, Employee Labor — Management Relations officials, Human Resources, and SOL or OIG counsel for legal guidance to propose recommendations to address harassing conduct found to have occurred in the workplace.

      4. The EEO Manager who received the complaint of harassing conduct shall inform the complainant at the completion of the investigation that the matter is completed and shall inform him or her that "appropriate action" was taken. In accordance with requirements of the Privacy Act of 1974, 5 U.S.C. § 552a, as amended, and to protect the rights of persons involved in the complaint process, the EEO Manager may not report the specific action taken.

        Note: There are Privacy Act concerns related to the disclosure of specific actions, including disciplinary actions that may be taken against the perpetrator of the harassment. The EEO manager shall refer all requests for disclosure of information and documents pertaining to a harassing conduct complaint to the agency's designated Freedom of Information Act (FOIA) coordinator.

      5. The EEO Manager shall complete a harassment complaint summary for record keeping purposes at the end of the process.
      6. If the complainant leaves DOL before the investigation is completed, the EEO Manager shall ensure that the investigation is completed and a final report is prepared.
      7. If an alleged harasser leaves one agency for another agency within DOL, the EEO Manager shall inform the new agency EEO Manager of the ongoing investigation, and shall ensure that it is completed and a final report is issued and provided to the new agency.
      8. If a current employee is alleged to have harassed an individual who is no longer an employee of DOL, the EEO Manager shall conduct an investigation into the complaint. After consultation with Employee Labor-Management Relations officials; and conferring with SOL or OIG counsel for legal guidance, the EEO Manager shall ensure that appropriate disciplinary action is taken against the perpetrator if harassing conduct is found to have occurred.

      9. Each EEO Manager shall prepare a final report for his or her records.

      10. The EEO Manager shall exercise caution and be sensitive to the Department's role and other ongoing processes that an employee implicated in a harassing conduct complaint may be involved, including but not limited to grievance procedures or filings before the EEOC, or Merit Staffing Protection Board.

    2. Harassment Involving Employees in Different DOL Agencies
      1. If employees of two or more agencies are implicated in a harassing conduct complaint, the EEO Manager receiving the complaint shall contact all other EEO Managers from the respective agencies of the employees implicated in the complaint.

      2. The EEO Managers shall jointly coordinate the fact-finding and management of the complaint process. Each EEO Manager shall maintain his or her own records on the respective complaint.

      3. If a contract investigator is needed to conduct an investigation into the complaint, the cost of the contractor shall be borne by the agency from which the alleged perpetrator is employed. The EEO Managers involved may negotiate these terms.

      4. Each EEO Manager shall meet with his or her respective employee(s) to inform them about the role of the other EEO Manager(s) in the investigation process, and the participation required of the employee to assist with the process. Each EEO Manager will be responsible for communicating with the employee(s) in his or her respective agency.

      5. Each EEO Manager shall consult with his or her respective agency management, Employee Labor-Management Relations staff, and SOL or OIG counsel for legal guidance to prepare recommendations to address harassing conduct found to have occurred in the workplace.

      6. The EEO Manager who received the complaint of harassing conduct shall inform the complainant at the completion of the investigation that the matter is completed and shall inform him or her that "appropriate action" was taken. In accordance with requirements of the Privacy Act of 1974, 5 U.S.C. § 552a, as amended, and to protect the rights of persons involved in the complaint process, the EEO Manager may not report the specific action taken.

      7. Each EEO Manager shall prepare a final report for his or her records.



  10. Complex Harassing Conduct Cases
    1. Complaint Alleging Harassing Conduct by High-Ranking DOL Official
      1. In situations where harassing conduct is alleged against a high-ranking DOL official, including Assistant Secretaries, other officials of the Department whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate (PAS), (except for the Inspector General and the Solicitor), Deputy Assistant Secretaries, and non-career SES appointees, notice of the complaint shall be directed to the Solicitor, who may delegate responsibility for investigating the complaint to the Associate Solicitor for the Office of Legal Counsel.

      2. The Associate Solicitor for the Office of Legal Counsel shall coordinate the investigation into the complaint and will draw on the expertise of the Civil Rights Center when it is appropriate.

      3. The Associate Solicitor for the Office of Legal Counsel may employ in all cases involving high-ranking officials, a contract investigator to conduct the investigation into the allegation of harassing conduct to ensure neutrality and integrity of the process. SOL will pay the cost for a contract investigator to initiate the investigation. At the completion of the investigation the agency where the official implicated in the harassing conduct is employed shall reimburse SOL for the cost of the contract investigator.

      4. The Associate Solicitor for the Office of Legal Counsel shall consult with agency supervisor(s) of the official implicated in the alleged harassing conduct and Employee and Labor Relations staff, before employing appropriate interim relief to address the alleged harassing conduct when interim relief is necessary.

        In cases where allegations are brought against an Assistant Secretary or presidential appointee, the Associate Solicitor for the Office of Legal Counsel shall consult with the Deputy Secretary before employing appropriate interim relief to address the alleged harassing conduct.

      5. The Associate Solicitor for the Office of Legal Counsel shall consult with agency supervisor(s) of the official implicated in the alleged harassing conduct, and the Employee Labor-Management Relations staff when necessary, to prepare recommendations to address the harassing conduct.

        In cases where allegations are brought against an Assistant Secretary or presidential appointee, the Associate Solicitor for the Office of Legal Counsel shall consult with the Deputy Secretary to prepare recommendations to address the harassing conduct of the official.

      6. The Associate Solicitor for the Office of Legal Counsel shall prepare a summary report on the complaint.

      7. The Associate Solicitor for the Office of Legal Counsel, at the completion of the investigation, shall ensure that the complainant is informed that the matter is completed and shall inform him or her that "appropriate action" was taken. In accordance with requirements of the Privacy Act of 1974, 5 U.S.C. § 552a, as amended, and to protect the rights of persons involved in the complaint process, the EEO Manager may not report the specific action taken.

      8. In the case where the harassing conduct is alleged against a high-ranking official in the SOL, notice of the allegation should be directed to the Director of the CRC. The Director of the CRC shall be responsible for coordinating the investigation of the allegation of harassing conduct.

      9. The Director of the CRC may employ a contract investigator to conduct the investigation into the allegation of harassing conduct to ensure neutrality and integrity of the process. The OASAM will pay the cost for a contract investigator to initiate the investigation. At the completion of the investigation, the SOL shall reimburse the OASAM for the cost of the contract investigator.

      10. The Director of the CRC shall consult with agency supervisor(s) of the official implicated in the alleged harassing conduct and Employee Labor-Management Relations staff, before employing appropriate interim relief to address the alleged harassing conduct when interim relief is necessary.

      11. In cases where allegations are brought against the Solicitor, or other presidential appointee in the Solicitor's Office, the Director of the CRC shall consult with the Deputy Secretary before employing appropriate interim relief to address the alleged harassing conduct.

      12. The Director of the CRC shall consult with agency supervisor(s) of the official implicated in the alleged harassing conduct, and the Employee Labor-Management Relations staff when necessary, to prepare recommendations to address the harassing conduct.

      13. In cases where allegations are brought against the Solicitor, or other presidential appointee in the Solicitor's Office, the Director of the CRC shall consult with the Deputy Secretary to prepare recommendations to address the harassing conduct of the official.

      14. The Director of the CRC shall prepare a summary report on the complaint.

      15. The Director of the CRC, at the completion of the investigation, shall ensure that the complainant is informed that the matter is completed and shall inform him or her that "appropriate action" was taken. In accordance with requirements of the Privacy Act of 1974, 5 U.S.C. § 552a, as amended, and to protect the rights of persons involved in the complaint process, the EEO Manager may not report the specific action taken.

      16. In the case where the harassing conduct is alleged against a high-ranking official in the Office of the Inspector General, notice of the allegation should be directed to the President's Council on Integrity and Efficiency.

    2. Complaint Alleging Harassing Conduct by Agency EEO Manager
      1. The EEO Manager for OASAM shall receive notice of all complaints alleging harassing conduct by another agency EEO Manager. The EEO Manager for OASAM will coordinate the investigation into the complaint. The OASAM will pay the cost for a contract investigator to initiate the investigation. At the completion of the investigation the agency where the perpetrator of the harassing conduct is employed shall reimburse OASAM for the cost of the contract investigator.

      2. The EEO Manager for OASAM may employ appropriate interim relief to address the alleged harassing conduct when it is necessary.

      3. The EEO Manager for OASAM shall consult when necessary, with respective agency management, Employee Labor-Management Relations officials, and SOL or OIG counsel for legal guidance to propose recommendations to address the harassing conduct.

      4. The EEO Manager for OASAM shall prepare a summary report on the complaint.

      5. The EEO Manager for OASAM shall inform the complainant at the completion of the investigation that the matter is completed and shall inform him or her that "appropriate action" was taken. In accordance with requirements of the Privacy Act of 1974, 5 U.S.C. § 552a, as amended, and to protect the rights of persons involved in the complaint process, the EEO Manager may not report the specific action taken.

      6. In the case where the harassing conduct is alleged against the EEO Manager for OASAM, notice of the allegation should be directed to the EEO Manager for SOL. The EEO Manager for SOL shall be responsible for coordinating the investigation, and shall follow the procedures outlined above for the section on harassing conduct alleged against an agency EEO Manager.

    3. Complaint Alleging Harassing Conduct by Employees of CRC
      1. An EEO Manager who receives a complaint of harassing conduct brought against an employee of the CRC shall notify the EEO Manager for OASAM, and he or she will be responsible for coordinating the investigation.

      2. The EEO Manager for OASAM may employ appropriate interim relief to address the alleged harassing conduct when it is necessary.

      3. The EEO Manager for OASAM shall consult when necessary, with respective agency management, Employee Labor-Management Relations officials, and SOL for legal guidance to propose recommendations to address the harassing conduct.

      4. The EEO Manager for OASAM shall prepare a summary report on the complaint.

      5. The EEO Manager for OASAM shall inform the complainant at the completion of the investigation that the matter is completed and shall inform him or her that "appropriate action" was taken. In accordance with requirements of the Privacy Act of 1974, 5 U.S.C. § 552a, as amended, and to protect the rights of persons involved in the complaint process, the EEO Manager may not report the specific action taken.


    4. Complaint by Contractor Alleging Harassing Conduct by a DOL Employee
      1. Complaints raised by contract employees — If a contract employee complains of harassing conduct by a DOL employee, the EEO Manager of the alleged harasser's agency shall process the complaint and conduct an investigation.

      2. The EEO Manager shall consult with his or her respective agency management, Employee Labor — Management Relations officials, and SOL or OIG counsel for legal guidance to prepare recommendations to address the harassing conduct.

      3. The EEO Manager who received the complaint of harassing conduct shall inform the complainant at the completion of the investigation that the matter is completed and shall inform him or her that "appropriate action" was taken. In accordance with requirements of the Privacy Act of 1974, 5 U.S.C. § 552a, as amended, and to protect the rights of persons involved in the complaint process, the EEO Manager may not report the specific action taken.

      4. The EEO Manager shall prepare a final report for his or her records.

    5. Complaint by DOL Employee Alleging Harassing Conduct by Contractor

      Contract employees are expected to comply with the internal policies governing the conduct of DOL employees.

      1. If a DOL employee reports harassing conduct by a contract employee, the EEO Manager shall bring the matter to the attention of the alleged harasser's supervisor, and request that the contractor conduct an investigation and take appropriate action to eliminate the harassing conduct if the allegations are supported.

      2. The EEO Manager may consider after consulting with Employee Labor-Management Relations officials, and with SOL or OIG counsel for legal guidance, recommending suitable interim relief for the DOL employee who is alleged to be harassed, when it is appropriate.

      3. The EEO Manager who received the complaint of harassing conduct shall inform the complainant at the completion of the investigation that the matter is completed and shall inform him or her that "appropriate action" was taken. In accordance with requirements of the Privacy Act of 1974, 5 U.S.C. § 552a, as amended, and to protect the rights of persons involved in the complaint process, the EEO Manager may not report the specific action taken.

      4. The EEO Manager shall prepare a final report for his or her records and provide a copy to the contract employee's employer.


  11. Summary Report on Harassing Conduct Investigation
    1. A summary report on the investigation into an allegation of harassing conduct should be prepared by the individual conducting the investigation. The EEO Manager shall be responsible for maintaining a copy of the report.

    2. The report should include:
      1. A discussion on the background of the complaint;

      2. Findings from the investigation;

      3. Recommendations proposed by the DOL team including Employee Labor-Management Relations officials and SOL or OIG counsel;

      4. Signature of the person who prepared the report.

    3. The management official responsible for taking disciplinary action against the harassing employee shall receive a copy of the summary and related evidence.

    4. The responsible management official shall promptly evaluate the evidence and recommendation proposed by the DOL team including the EEO Manager, Employee Labor-Management Relations staff, and SOL or OIG counsel, and shall take timely and appropriate corrective action.


  12. Closing Cases and Record-keeping

    Once an investigation has been completed and management action has been taken, the EEO Manager shall:

    1. Complete a harassment claim summary form and forward a copy to the CRC.

    2. Maintain the original investigative report and complaint summary form in accordance with the systems of records prescribed.

    3. Meet with or orally communicate with the complainant whether action was taken in response to the complaint filed. Written communication on whether action was taken should also be provided.

    4. Provide CRC with a quarterly report containing the following information:

      The number of complaints received;
      The number of cases concluded;
      The time expended to conclude the case;
      The bases of the cases handled; and
      The regions/suboffices from which the cases originated.


  13. Training

    All employees will receive training on the Harassing Conduct Policy. It will include information on their rights and responsibilities; and procedures to follow in the event they experience harassing conduct in the workplace. This training will be computer-based and in-person. All employees will have to document that they have taken the required training.